Cole v. Parker-Washington Co.

• Decision Date: 19 December 1918
• Docket Number: No. 19060.,19060.
• Citation: 276 Mo. 220,207 S.W. 749
• Parties: COLE et al. v. PARKER-WASHINGTON CO. et al.
• Court: Missouri Supreme Court

207 S.W. 749

276 Mo. 220

COLE et al. v. PARKER-WASHINGTON CO. et al.

No. 19060.

Supreme Court of Missouri, in Banc.

December 19, 1918.

Appeals from St. Louis Circuit Court; Leo S. Rassieur, Judge.

Suits by John Gully Cole and others against the Parker-Washington Company and others. From a decree against them, plaintiffs Philla Olds Cole and James Gilbert Cole appeal. Reversed and remanded, with directions.

This suit was instituted in the circuit court of the city of St. Louis by the plaintiffs against the defendants to partition three lots of ground situate in said city. The decree of partition was in favor of the plaintiff John Gully Cole, and against the plaintiffs Philla Olds Cole and James Gilbert Cole, and partially for and partially against the defendant Parker-Washington Company and in favor of the defendants Anna E. Sands, Sarah J. Ridpath, and Mary Cole Palmer. Those against whom the decree was rendered duly appealed the cause to this court.

The Parker-Washington Company (which for brevity will hereinafter be designated as the company) bases its claim of interest in and to the lots through a sale by execution had under a judgment rendered in a suit brought by it April 27, 1907, on special tax bills issued against said lots which will be presently described.

Prior to bringing of said suit the three lots were owned by John J. Cole, James W. Cole, and Robert S. Cole, brothers, in common, each owning a one-third undivided interest therein. Robert S. Cole died in the year 1900, leaving surviving him five children, William T. Cole, Minnie Cole Conway (who sold her interest to William T. Cole), Sarah J. Ridpath, Anna E. Sands, and Mary Cole Palmer, who inherited their father's share in said lots. James W. Cole died June 5, 1907.

The suit on the tax bills as previously stated was filed April 27, 1907, returnable to the June term, 1907, of the court. The defendants in that suit were John Z. Cole, James W. Cole, Philla Olds Cole, his wife, William T. Cole, and the unknown heirs of Robert S. Cole. Personal service was had upon John J. Cole, and service by publication was obtained against the other defendants, and those specifically named were alleged to be nonresidents, and the unknown heirs of Robert S. Cole were alleged to be unknown parties. The last insertion of the order of publication was on May 18, 1907, about one week before the death of James W. Cole. The latter by will divided his one-third interest in the lots to his widow, Philla Olds Cole, and his son James Gilbert Cole, in equal parts.

In February, 1908, the company obtained a judgment on the tax bills aggregating something over $900 against the lots mentioned. Subsequently said judgment, on appeal, was affirmed as to two-thirds interest in said property, but not against the one-third interest of John J. Cole, and in due course the company advertised and sold said property under said judgment, and at the sale the company was the highest bidder, and purchased the two-thirds interest so sold.

In this partition cause, the trial court awarded the interest of Jas. W. Cole (which of course, included his wife, Philla Olds Cole, and his son, James Gilbert Cole), and also awarded the interest of Wm. 7. Cole to the Parker-Washington Company, but awarded the interest of Sarah J. Ridpath, Mary Cole Palmer, and Anna E. Sands, sued as unknown heirs, to them on the theory that the order of publication was insufficient to bind them.

Such other facts of the case as may be necessary for a proper disposition of the case will be noticed in appropriate places in the opinion.

R. M. Nichols, of St. Louis, for plaintiffs. Barclay, Orthwein & Wallace, of St. Louis, for defendant Parker-Washington Co.

WOODSON, J. (after stating the facts as above).

I. Counsel for the company first insists that Philla Olds Cole and James Gilbert Cole are in no position to urge the errors complained of by them for the reason that they occurred during the trial and prior to the rendition of the interlocutory judgment ordering the partition of the lots, and were not called to the attention of the trial court at that time by a motion for a new trial, but at a later term by such motion filed within four days after the rendition of the final decree in the case.

In support of this insistence we are cited to the following cases: Green v. Walker, 99 Mo. 68, 12 S. W. 353; Brady v. Connelly, 52 Mo. 19; Hatcher v. Moore, 51 Mo. 115; Vineyard v. Matney, 68 Mo. 105. None of these cases support the proposition presented for decision; in the first and third there was no motion for a new trial filed in the cause at any state of the case, and in the second and fourth, while a motion for a new trial was filed, yet the errors complained of in this court were not called to the attention of the trial court in the motion for a new trial.

Under those facts, this court correctly ruled in all of those cases that the errors complained of were not reviewable by this court. But in the case at bar a motion for a new trial was timely filed after the rendition of the final judgment in the case, and that is the only motion for a new trial the statutes of this state and the practice thereunder require to be filed, without it can be said that the statute requires a motion for a new trial to be filed within four days after the rendition of an interlocutory judgment where the party who deems himself aggrieved thereby desires to appeal therefrom. In my opinion the statute, requiring a motion for a new trial to be filed within four days after the rendition of the judgment, applies to an interlocutory decree when it is to be appealed from the same, as it does to a final judgment when it is to be appealed from, but in neither _ case when no appeal is to be taken. The reason for requiring the motion to be filed in the one case is just the same as in the other, viz. to call the attention of the trial to its own errors. But there is no reason for requiring such a motion to be filed to an interlocutory decree, if no appeal is to be taken therefrom prior to the rendition of the final judgment. The right to appeal from an interlocutory decree is purely optional with the party who feels himself aggrieved thereby; that is the express provision of section 2038, R. S. 1909, but he is not bound to so do in order to preserve his right to have this court review the rulings of the trial court on appeal from the final judgment, provided he then calls the trial court's attention to the errors complained of by a motion for a new trial; this is expressly provided for by said section 2038 in the following language:

"But a failure to appeal from any action or decision of the court before final judgment shall not prejudice the right of the party so failing to have the action of the trial court reviewed on an appeal taken from the final judgment in the case."

In the light of this statute there is no rhyme or' reason for filing a motion for a new trial upon the rendition of an interlocutory decree without the aggrieved party wishes to appeal the cause to this court. There has been some unguarded language used in some of the cases, which, if not read in the light of this statute, might lead one to believe this court has committed itself to the proposition that none of the proceedings of the trial court had prior to and including the rendition of interlocutory decree could be reviewed by this court without a motion for a new trial is filed within four days thereafter. But be that as it may, all such cases, if there be any announcing a contrary rule are hereby overruled. We therefore decide this insistence against the company.

II. Counsel for plaintiffs contends, since the record in this case discloses the fact that James W. Cole died June 5, 1907, after service of process upon him in the tax suit mentioned, and about five days prior to the return day of the writ, which was June 10, 1907, and some eight months before the date of the trial and rendition of judgment, which was February 20, 1908, without having that suit revived against his heirs or representatives on or before the third term of the court after his death occurred, the cause permanently abated, and the judgment rendered therein is, as a matter of law, under sections 1916, 1921, 1922, and 1923, R. S. 1909, utterly void as to his devisees Philla Olds and William J. Cole, and cite in support of that proposition the following cases: Sargeant v. Rowsey, 89 Mo. 618, 1 S. W. 823; Murphy v. Redmond, 46 Mo. 317; Rentschler v. Jamison, Adm'r, 6 Mo. App. 135; Weller Mfg. Co. v. Eaton, 81 Mo. App. 657; Childers v. Schantz, 120 Mo. 305, 25 S. W. 209; Adams v. Gossom, 228 Mo. 536, 129 S. W. 16; In re Young Estate, 59 Or. 348, 116 Pac. 95, 1060, Ann. Gas. 1913B, 1310; Life Ass'n of America v. Fassett, 102 Ill. 315; Bivens v. Henderson, 42 Ind. App. 562, 86 N. E. 428; Kager v. Vickery, 61 Kan. 342, 59 Pac. 628, 49 L. R. A. 153, and note, 78 Am. St. Rep. 318. Section 1916, so far as material, provides:

"No action shall abate by the death * * * if the cause of action survive or continue. In case of the death * * * the court, on or before the third term after the suggestion of such death * * * may, on motion, order the action to be continued by or against the representative or successor of such party in interest," etc.

Section 1921, supra:

"In all cases where the representatives of the deceased or disabled party shall not be made parties according to the provisions of this article, on or before the third term after the suggestion of the death or disability, the action shall abate as to such party and the interest of his representatives or successor therein," etc.

Section 1922:

"After a verdict shall be rendered in any action, and after an answer of confession in any suit brought, if either party die before judgment be actually entered thereon, the court may, within one term after such verdict or answer, enter final judgment in the name of the original parties."

Section 1923:

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